Renovating the law

The existing housing laws have been described as uncertain and unsatisfactory, but the implementation of new legislation has been hampered by political issues, says Mike Yuille

A roof over one's head may seem to be a citizen's inalienable right. But in both landlord and tenant law, and the related housing law field, there are still many problems and complexities.

Professor Jill Martin, a legal expert at King's College, London, cites a range of problems in the law governing the rights of residential tenants: difficulties of tenants recovering deposits at the end of a lease; the absence of a duty on landlords to keep a property fit for habitation; and the “overwhelmingly complex” rules for enfranchisement – where long leaseholders have the right to buy their block, or renew a long lease on a flat.

But such issues can be governed by political restraints. For example, a duty on landlords to ensure their properties are in a habitable condition would cost local government hundreds of millions of pounds – public expenditure which might lose as many taxpayers' votes as it wins. And with a huge cost anticipated for repairing Britain's crumbling housing stock, private landlords would undoubtedly rebel.

Since the 1970s, Andrew Arden, the uncompromising leader of Arden Chambers, has called for a housing court or tribunal, with a housing code to govern the performance of landlords and tenants. “Not until you have both a uniform housing code and a court with an appeal process will you seriously make housing law accessible to people, without enormously wasting public funds,” he says.

Commercial tenants – and landlords themselves – also continue to face difficulties, often through badly-drafted legislation, and even seemingly perverse Appeal Court rulings which can appear to contravene common sense, say some lawyers. Professor Martin says: “Bad drafting in the Landlord and Tenant (Covenants) Act 1995 has led to consequent uncertainties, in particular over the role of guarantors.

“I hope recent Law Commission proposals on this will be followed up with legislation.”

An area of concern which affects commercial premises is “forfeiture of leases by physical re-entry” – that is, where a tenant allegedly breaches covenant, a landlord can merely change the locks rather than having to go to court to remove the tenant.

While there are circumstances where this may be necessary, the law is “uncertain and in an unsatisfactory state,” says Professor Martin.

New laws often bring new problems, and the Housing Act 1996 is no exception. Kim Lewison of Falcon Chambers condemns the new Leasehold Valuation Tribunals system for “terrible delays” and for being “inadequately staffed”. Without proper resourcing, it will be hard-pushed to improve upon the former system of rent assessment committees, he says.

Lord Woolf's civil justice reform will bring specific fast-track procedures for housing cases, which are “broadly welcome”, says Lewison. But on a cautious note, he warns that the greater emphasis on paperwork in such cases could increase the cost of litigation. Some barristers feel there is still too little detail to decide whether the reforms will lead to concrete improvements.

Finally, new law on commonhold rights may herald sweeping changes to the way flats are bought and sold, replacing the current enfranchisement system. A draft commonhold bill has been in existence for several years now, and the Law Commission has consulted widely.

But despite pressure for change from the profession and the media, there are few signs of government resolve. Lawyers in the field – and beleaguered tenants – can only live in hope.